Municipal housing code citations can be a nightmare for NJ landlords. A prior post explained how some tenants intentionally or neglectfully damage their apartment and sic the city on the landlord. These housing code citations can be used by the tenant to form the basis of habitability or “Marini” withholding. Even worse, housing code citations carry onerous municipal fines. In light of the dual damage of landlord-tenant habitability withholding and municipal fines, NJ landlords should be aware of the technical requirements of the International Property Maintenance Code (“IMPC”). Housing code violations should be appealed when the notice requirements are not strictly followed by the city. Most importantly, the Notice should identify which party is responsible for “repair” vs. “maintenance.”
Section 107.2 (“Form”) of the IPMC controls the technical requirements of Notices of Violation. It requires that six (6) specific conditions be met. These conditions require that the Notice:
1. Be in writing;
2. Include a description of the real estate sufficient for identification;
3. Include a statement of the violation or violations and why the notice is being issued;
4. Include a correction order allowing a reasonable time to make the repairs and improvements required to bring the dwelling unit or structure into compliance with the provisions of this code;
5. Inform the property owner of the right to appeal;
6. Include a statement of the right to file a lien in accordance with Section 106.3.
There is a subtle distinction between Section 107.2 (“Form”) and Section 107.1 (“Notice to person responsible”). Read carefully, Section 107.1 requires that the Notice of Violation be served upon the “person responsible for the violation.” Yet, Section 107.2 requires that the Notice of Violation inform the “property owner” of the right to appeal. If the property owner is not the “person responsible” for the violation and the Notice of Violation is served upon the “person responsible” how will the property owner be informed of his/her right to appeal?
The 107.1 “Person Responsible” vs. 107.2 “Owner” distinction pulls in Section 102.2 “Maintenance.” Section 102.2, states that “the owner or owner’s designated agent shall be responsible for the maintenance of buildings…” These sections could be read to hold the owner or owner’s agent responsible for all habitability concerns regardless of the origin of that concern. But, an owner’s responsibility for “maintenance” is fundamentally different from an owner’s obligation to “repair.”
A generally accepted definition of “maintenance” is: “the process of maintaining or preserving someone or something, or the state of being maintained.” A generally accepted definition of “repair” is: fix or mend (a thing suffering from damage or a fault. Section 102.2 states that the property owner is responsible for “maintenance.” This could be taken to mean that while property owners/landlords are responsible for maintaining existing IPMC code compliance, the “person responsible” for “repair” could be someone else (i.e., the tenant). These distinctions are critical in avoiding lengthy habitability withholding cases and onerous municipal fines.
Offit Kurman practices landlord tenant law throughout New Jersey assisting landlords and tenants in avoiding unnecessary and costly delays. The firm’s geographic practice area includes: New Jersey (Jersey City, Hoboken, Bayonne, Hudson County, Newark, Essex County, Woodbridge, Middlesex County, Paterson, Passaic County, Bergen County). The Firm invites you to visit the “Promises” page for our new way of doing business.